The opinion
DANAHER, Circuit Judge
(dissenting).
Certain propositions are elementary and may be simply stated. The Act authorizes a grant of a construction permit only upon a written sworn application which shall set forth such facts as the Commission may by regulation prescribe as essential to an exercise of its judgment. The Commission’s Rules require that each application shall contain full and complete disclosure as to such matters. Defective applications, patently not in accordance with the Rules will be dismissed unless accompanied by a request for waiver of, or exception to, an applicable rule.
One such rule 1 provides that the “main studio of a television broadcast station shall be located in the principal community to be served,” a provision which may be waived for “good cause.”
Various applicants filed mutually exclusive applications for Channel 12, Beaumont-Port Arthur, Texas. All having been found “formally” qualified, a consolidated hearing was ordered, but the Commission itself as of August 8, 1957, designated as an issue as to the intervenor “whether good cause exists for a waiver of Section 3.613(a) of the Rules with respect to the main studio proposed by Television Broadcasters, Inc.”
Before the Examiner, Bureau counsel pointed out the possibility of a change in the comparative picture because of the studio issue and that “it certainly is questionable whether at this late stage 2 Television Broadcasters should be allowed to move their studio into town.” The Examiner noted that the “record contains grave implications of [Television Broadcasters’] early foreknowledge of the possible unavailability (or non-use) of the studio specified in the application.” The Examiner denied at that stage, February 19, 1958, the intervenor’s petition to amend to specify a new studio location within the City of Beaumont. The hearing went forward, and as of August 11, 1958, the Examiner recommended an award to Brown Telecasters, Inc.
The Commission, three members absent, as of November 6,1959 reversed the Examiner. The Commission as to the studio issue noted:
“The studio in question is already in existence and was the one used by Television Broadcasters in its UHF operation, and for which a waiver of the rule, with respect to the UHF operation, has already been granted. * * * The feasibility of the site has been demonstrated by its use as a UHF studio. If we were to require compliance with the rule as a condition to a VHF grant the sums expended by the applicant in constructing the studio pursuant to a waiver of the rule, would be largely wasted. Under the circumstances we believe good cause exists for waiver of the Rule, and that Television Broadcasters, despite urging of threshold disqualification, is entitled to comparative consideration.”
Surely the Commission could not have relied upon the earlier waiver as to the UHF use of an out-of-town site in view of its having, sua sponte, designated the studio site issue. Once the issue was presented, we find the Commission talking about and purporting to approve the out-of-town site when the one Television Broadcasters intended to use was in *872 town. Now we would be persuaded that it makes no difference, not in terms of a post-grant improvement of an applicant’s position, but in terms of a post-award disregard of an initial disqualification. Yet the Examiner had been led to the position that criticisms by two other applicants became irrelevant because the Commission at the outset had found Television Broadcasters to be legally, financially and “technically qualified.” 3
The whole course of the hearing was necessarily altered. Costs involved in readying and reconstructing, as well as in program production 4 in, a new in-town site surely were critical to the financially beleaguered applicant. Competing applicants, however, had to deal with the case in the posture then presented before the Examiner. Public convenience and necessity stressed by my colleagues might be served, no matter which of the applicants might prevail, indeed Brown was recommended by the Examiner. But the due process to which Brown was entitled was ultimately denied because of what the Commission did. Clearly, to my mind and as I shall demonstrate, it was the error of the Commission which has left the record in the form which my colleagues find acceptable.
Obviously the Commission recognized that either an applicant must comply with the rule or the Commission must find that good cause exists for non-compliance. It follows that absent compliance or a proper finding of a waiver, the applicant is not qualified. The Commission’s rules and regulations following the statute permit no other conclusion.
Here the grounds set forth by the Commission simply are not so. Moreover the Commission is talking in terms of waiver as to an out-of-town site when the award actually involves a completely different location. Down to this minute, the record wholly fails to establish a studio proposal by Television Broadcasters. Comparative consideration of sites is not at all a determining factor here, we may agree, but because of the hiatus, rulings on other aspects of proof necessarily controlled the course of the hearing. Therein lay the vice, once the Examiner had denied Television Broadcasters’ proffered amendment to show a changed studio site. The contestants were thus in controversy as to other comparative factors, so presenting to the Commission a very different record than should otherwise have been the case. Yet the Commission simply reaches back into the record, such as it is, then purports to find qualification where there was failure, and even in doing so is factually wide of the mark.
For example, the site specified by Television Broadcasters was not within the city. Some years earlier, it had been used by KBMT to be sure, but the intervenor’s affidavit of February 4, 1958 filed with the Examiner showed that since collapse of the UHF operation, the studio site “had been so ransacked and burglarized due to lack of use, that it would have cost several thousand dollars to repair, and allowance for which had been made in our original cost estimates.”
The property had already been sold at a sheriff’s sale on November 5, 1957, to satisfy a judgment against Television Broadcasters. Nothing remained of the building but the concrete floor and outer walls. “Even the roof, all wiring and plumbing connections had been removed,” said Television Broadcasters’ *873 Mr. Reed’s affidavit of December 28, 1959.
But the Commission finds “good cause” in that the non-existent studio “is already in existence”; the “feasibility of the site has been demonstrated,” but the “feasibility” so found in 1952 for a UHF station related to a completely different site from that actually to be used; and if “we were to require compliance with the rule * * * the sums expended [previously] by the applicant * * * would be largely wasted”; yet they already had been.
The Commission, like any other agency, should be bound by its own rules. I think the error glares.
. 47 C.F.R. § 3.613 (a) (1958).
. The Examiner deemed it established of record that the chief reason for Television Broadcasters’ proposed studio change was not to achieve conformance with the Rule, supra note 1, but because the site was unavailable.
. The Examiner additionally noted:
“It is apparent that Television Broadcasters has not met its burden of proof. To adopt the argument of Television Broadcasters would be to hold that the Commission has requested the applicant to do a futile, unnecessary thing in meeting the burden. That interpretation would be unthinkable, stultifying. The imagination does not need to run rampant to pose many different and valid reasons as to why an applicant, possessing a waiver for the studio location in a sometime one-station market (and that, UHF) should be required to ‘prove up’ such a waiver in a competitive YHF situation.”
. The Examiner noted that none of the parties had “put any money figures into the record to support their views.”